Michael Perry’s book is another important and provocative contribution to the literature on constitutional law and human rights. In it, Perry carefully argues that particular human rights are now essentially “entrenched” in the United States constitutional fabric. Judges should, therefore read the constitution as if those rights were actually in the text or, at least, interpret the constitutional text in a manner that promotes the entrenchment of the rights he discusses. These three rights are: The right not to be subjected to cruel and unusual punishment; the right to moral equality, and, the right to religious and moral freedom.

Specifically, he argues that the protection against cruel and unusual punishment renders the death penalty and torture unconstitutional. Moral Equality protects the right to same-sex marriage. Finally, religious and moral freedom embraces the right to an abortion. The principal basis for his conclusions is that the international rights community has moved clearly towards these visions of human rights. Furthermore, the trajectory of the U.S. Supreme Court’s doctrine indicates a general trend in this same direction. Accordingly, he concludes that these interpretations of rights are now, for all intents and purposes, entrenched in the U.S. Constitution.

Let me pause to say here that I found this to be an extraordinarily provocative, yet troubling book. On the one hand, I have nothing but great respect for Professor Perry’s work. Further, I do, for the most part agree with his positions on the issues of same-sex marriage, torture, capital punishment and abortion. Nevertheless, I found it quite difficult to agree with or be persuaded by the reasoning on which he bases his conclusions.

Granted, this is a work of political and legal philosophy and therefore, it should invite rebuttal and response along with agreement. So, in that spirit, I offer the following friendly, yet critical analysis of the rationale underpinning Perry’s conclusions. When dealing with such divisive issues, it is vitally necessary to construct airtight arguments to support one’s positions. Alas, I found that Perry’s reasoning is not as airtight as it needs to be to support his conclusions or persuade those who might not agree with him.

To begin, Perry’s argumentation swings back and forth from a reliance on positive power (relying, e.g., on the force of global majority opinion to conclude that life begins at conception) to making prima facie assertions about the moral unacceptability of, for example, the death penalty: “no matter what the crime, punishing a criminal, even a mentally competent adult, by killing him or her is excessive – it [*123] crosses the line – and is evidenced as such by the fact that capital punishment has become demonstrably unusual.” (p.85)
A particularly troubling aspect of his reasoning is, ironically, his reliance on global public opinion. Much of his argument about abortion, same-sex marriage, torture and punishment is grounded on the fact that international human rights laws and treaties have come to embrace the positions he supports. In this respect, part I of the book is a truly useful, clear and concise overview of trends in the development of human rights law over the last half century or so.

But, relying on the force of global public opinion is, inescapably, taking a positivist stand. Perry argues that, insofar as global public opinion generally condemns torture and capital punishment, maintains that life begins at birth and not at conception, and supports gay marriage, the U.S. should follow suit. While global consensus is important,. Perry’s argument in favor of supporting it in the U.S.A. begs the question: would he be as supportive of global public opinion if it took a contrary stance?

As well, the nature of Prof. Perry’s argument casts the U.S.A. in a paradoxical light: to the extent that American law might not agree with global public opinion, does the USA not, then take on the position of the Thoreauvian dissenter or conscientious objector whose moral principles are as entitled to respect and protection as those of the seeker of an abortion or same-sex marriage? I offer this point of view not to be argumentative but, instead, to note that the structure of Perry’s argument does leave the reader conflicted.

I found his analysis of the constitutional basis for banning capital punishment to be wanting. Perry and I would assuredly find common ground in our opposition to the death penalty, but for different reasons. His assertion that the ban against the death penalty is entrenched in the U.S. Constitution via the Eighth Amendment’s prohibition against cruel and unusual punishments is, with all due respect, incomplete at best and inconsistent at worst. The due process clauses of the Fifth and Fourteenth Amendments countenance the death penalty explicitly: neither life, liberty nor property may be taken without due process of law. The Fifth and Fourteenth Amendments are no less entrenched than the Eighth.

Perry suggests that to the extent that most of the world’s nations have abolished the death penalty, it is now, indeed “unusual” as well as cruel (p.81). There is merit to this argument. But, it is not clear that “unusual” is necessarily synonymous with “uncommon.” Furthermore, there is no escaping the fact that majority support for a concept does not necessarily give it moral transcendence. Majority support provides most certainly a positive, powerful, perhaps Hobbesian basis for a law, but not necessarily a moral one.

Perry thoughtfully acknowledges the problem with a blanket ban on capital punishment when he alludes to Cathleen Kaveny’s “A Horrific Crime” (pp.83ff.). The reader can get the details of the unconscionable murder that Kaveny discusses in Perry’s text or in her article. [*124] Suffice to say that the quadruple assault/rape/abuse/homicide by various means involved would test anyone’s objection to capital punishment.

Perry quotes from Kaveny to demonstrate the cruelty and inhumanity of the death penalty:

The execution is a separate event from the crime. At the moment of execution, a criminal is helpless before the power of the state. We strap him to a gurney and snuff out his life. Can a society engage in this ritual while meaningfully advancing a commitment to the unconditional dignity of every human being? (p.85)

I note that Kaveny actually goes on to acknowledge that Thomas Aquinas himself suggested that the removal of some criminals from society is for the good of society – like removing a gangrenous limb. But, Kaveny maintains that criminals are, like Frankenstein’s monster, created by the society that wishes to kill them. Can society justify terminating their lives?

In the same way that Kaveny says that we must look at the criminals as part of society, so too must we look at the punishment as part of a series of events that includes many actions and choices by the criminals and that includes victims, and others. This is not a heartless, faceless, soul-less state that has chosen to make an example out of a hapless “helpless” defendant. The “helpless” defendant was in fact quite empowered perpetrating crimes – until the state, acting on behalf of the victims, caught him.

For many reasons, I do not support the death penalty. But, it is clear that there are moral reasons for supporting it. Even Justice Blackmun – who became one of the most outspoken critics of the death penalty – wrestled with the issue before changing his mind and declaring capital punishment unconstitutional. As Justice Blackmun noted in FURMAN V. GEORGIA: “I yield to no one in the depth of my distaste, antipathy, and, indeed, abhorrence, for the death penalty with all its aspects of physical distress and fear and of moral judgment exercised by finite minds. . . . Although personally I may rejoice at the Court's result, I find it difficult to accept or to justify as a matter of history, of law, or of constitutional pronouncement. I fear the Court has overstepped.”

Perry also struggles mightily with what would seem to be an easier case: banning torture. Yet, he acknowledges that, as Charles Fried notes, there may be, in unconscionably extreme situations, a justification for it – else the heavens (or the World Trade Center) might fall (p.51). In the end, Perry makes a reasonable suggestion that we should deal with such extreme situations as they arise and, meanwhile, maintain unqualified bans on torture. In this regard, he echoes Robert Jackson’s opinion in KOREMATSU v. U.S., where he argued, essentially, that the Supreme Court should not decide the case for fear of establishing a legal and constitutional precedent for race-based internment (or other) policies.

With regard to moral and religious equality, Perry contends that the rights to abortion and same-sex marriage are also entrenched in the U.S. Constitution. It is [*125] with regard to these two rights that I find his notion of constitutional entrenchment to be troubling. Perry states that a right is entrenched in a constitutional document if “constitutional enactors entrenched [the right] in the constitutional law [sic],” and it has not been superseded by subsequent constitutional action or amendment or constitutional right (p.57). So, essentially, a right is entrenched when someone entrenches it. Until then? Citing Robert Bork, Perry goes on to explain that an entrenched right is

a practice that is “so embedded in the life of the nation, so accepted by the society, so fundamental to the private and public expectation of individuals and institutions,” that the Supreme Court will regard the practice or right as constitutionally authoritative. In some instances, this entrenchment is the result of Supreme Court decisions. (58)

This seems quite reasonable. But, as written, it would justify perpetuating clearly established practices that we might not approve.

On the one hand, Perry argues for a very broadly-defined notion of religious freedom: practices protected by religious and moral freedom include not just practices one believes oneself religiously and/or morally obligated to engage in (p.119). In this regard, virtually any firmly held beliefs or objections must be afforded religious and moral protection.

Yet, he also places qualifications on this broad definition. First, to be afforded religious or moral protection, a belief must be a “core or meaning-giving beliefs” not mere “fundamental preferences we display as individuals” (p.120). Second, he notes that the International Covenant on Civil and Political Rights (ICCPR) regards religious rights as conditional (p.121). Not just any practice can be deemed “religious.” Accordingly, a government may ban or restrict a practice only if it

Serves a legitimate government purpose;

It does so in the least burdensome manner to belief-holders; and

The good the government seeks must be justified by the burden on the exercise of the religious claim (p.122)

Accordingly, Perry cites REYNOLDS V. U.S. and LUNDMAN V. MCKOWN as demonstrations of how religious freedom does not extend to extreme practices such as polygamy or the denial of medical care to one’s children (p.121 n. 26). Citing Article 18 of the ICCPR, Perry condones such decisions because the ICCPR allows government to act to “protect public safety, order, health, or morals or the fundamental rights and freedoms of others” (p.124).

This still leaves the reader hanging, though. Even a staunch advocate of rights to same-sex marriage may acknowledge that at least some of those who disagree might ground their antithetical positions on concerns of public safety, order, health, morals. So, how do we distinguish valid restrictions from invalid ones?

Perry thoughtfully offers a distinction between laws grounded on secular morality and those grounded in sectarian morality: “The right to religious and moral freedom leaves no room for the [*126] political powers that be to ban or otherwise regulate conduct based on sectarian belief that the conduct is immoral” (p.126).

Citing Joseph, Schultz and Castan (2004), Perry says that “public morals’ measures should reflect a pluralistic view of society, rather than a single religious culture” (p.125). This is a thoughtful and reasonable way to distinguish among truly secular policies and sectarian ones that might be cloaked in secular clothing. Still, it leaves the reader to wonder: How much overlap between a particular policy and a corresponding sectarian belief renders the former sectarian?

His discussion of world opinions concerning when life begins is instructive here. While some institutions and persons may regard the issue as a religious one, others – particularly those seeking an abortion, may not. Accordingly, to cast it as a religious issue does not necessarily strengthen the case for or against abortion rights. This is not an argument for or against a woman’s decision to terminate a pregnancy. But, I offer it, again, as an example of where readers may find Perry’s reasoning troubling even if they agree with his policy preferences.

In closing, the reader should not regard my points of view, queries and rebuttals as manifestations of anything less than respect for Perry’s thesis. One must respect another’s ability or capacity to find clear moral or otherwise principled grounds for particular stands on human rights. One who finds amoral or practical (or other) justifications for such stands – even one who agrees with Perry’s stands – still might find his reasoning less than convincing. Folks may share a cause, but not motivation.

That cause, which all certainly share, is the support of the principle stated in Article I of the Universal Declaration of Human Rights: “All Human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” In the end, and from the beginning, Perry makes his case against torture and capital punishment and in favor of rights to abortion and same sex marriage in this spirit of brotherhood. In HUMAN RIGHTS IN THE CONSTITUTIONAL LAW OF THE UNITED STATES, Perry demonstrates that it is easier to share a cause than it is to agree on why we do so.

REFERENCES:

Bork, Robert. 1997. THE TEMPTING OF AMERICA. New York: The Free Press.